Taken by the state

Warning: Disturbing video content

A Family Court practice described as “barbaric” allows police to take children from their parents with no prior warning. The removals are used to enforce parenting orders, but are they harming the children the system is meant to protect? Melanie Reid and Cass Mason report.

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Night terrors

Police show up unannounced, during the night, at the home of a 5-year-old girl’s mother. They have a warrant, issued by a Family Court judge, for the removal of the child, by force if necessary - and it is clear the police are not leaving without her.

The child screams, cries for her mother, and tries to escape the officers by hiding behind a couch. Inevitably, she’s caught, lifted into the air and carried through the living room, kicking and wailing. Her mother films the scene, as the girl’s grandfather pleads with police not to hurt her. One of the officers calls the grandfather an “idiot” and as the girl is taken into the night she screams: “I’m going to vomit”.

Circumstances would suggest the girl was in grievous danger. Why else would three uniformed officers show up in the night and whisk a child into a police car?

Newsroom has reviewed many of the court documents pertaining to this case and the circumstances surrounding the child’s removal. There seems little to justify what’s shown in the footage, which can be watched in entirety in the video above.

Police are able to remove the 5-year-old because a Family Court parenting order says she is supposed to be with her father. If that order is breached, an application can be made to the Family Court by the aggrieved parent or guardian for a warrant to take the children and return them to where they should be - using reasonable force if necessary.

Newsroom has investigated other cases where police removals have taken place in similar circumstances.

Professor Mark Henaghan, Dean of the Faculty of Law at the University of Otago, says Family Court judges would feel much differently about issuing the orders if they could see footage of how distressing the uplifts are. "You can’t tell me that it is in the welfare and best interest of children."

More and more, uplifts are becoming a battle of enforcement and they terrorise the children involved, he says.

President of the Police Association Chris Cahill says uplifts are tough on police too, with officers used as pawns in “wider games by parents”.

The bigger picture

The little girl in the video lived full time with her mother until the age of 5. Earlier this year, after a custody battle in the Family Court, the child’s father was granted full-time care, and her mother allowed weekend visits.

The parents do not live in the same city.

In June, at the end of a weekend visit with her mother, who lives with her parents in a comfortable suburban home, the child refused to get on a flight to return to her father. A police report says she became so upset that Air New Zealand refused to board her.

Her father was told by police about the situation, and assured his daughter would be driven home the next day. The trip is seven hours’ long.

That evening, the mother emailed her daughter’s court-appointed lawyer to inform her she was still with her. She also asked the lawyer for advice about what to do.

The next day, the mother decided to take her daughter to the doctor instead of making the drive back to the father’s location. Newsroom can’t disclose the reason why the mother chose to take the child to the doctor. Late that afternoon, she also met with two social workers at the local Child, Youth and Family Services (CYFS) office. The mother, who was concerned about being in breach of parenting orders, says CYFS workers told her they would be in touch about delaying her daughter’s return for another day.

A 5-year-old girl is uplifted from her home in the night by three police officers on a Family Court order. Photo: Still from supplied video

Meanwhile, the child’s father applied for a without-notice order to have his daughter returned.

In his application, he outlined the mother’s breach of the parenting order, and also claimed his daughter might be in danger from her stepfather.

Based on the father’s application, the judge granted the warrant to enforce the return of the child.

The judge’s decision says: “The application is dealt with on the papers filed. I am satisfied that the delay that would be caused by making an application on notice would or might entail serious injury or undue hardship or risk to the personal safety of the applicant or any child of the applicant’s family or both. Jurisdiction made out. Threshold met. Having considered recent orders it appears the child has not been returned in accordance with the care provisions.”

Over the course of the afternoon, the woman waited with her daughter. According to her, no contact was ever made by CYFS workers, so she phoned the nearest central city police station.

Advice from the police is that she should “act in the best interest of her child”, the mother says.

So, she decided to keep her daughter for the night.

Police at the door

However, that evening, police turned up at her home.

Acting on instructions from the Family Court, three officers filed in to take her daughter away in a clearly traumatising intervention.

For Professor Henaghan, the intervention shows that the welfare of children is no longer a priority.

“It’s become a battle of enforcement between the parents, courts, saying we’ve made an order, therefore it has to be enforced otherwise the court’s not carrying out its job.

“But the primary job of the [Family] Court is the welfare of the child. And I think if they saw some of the consequences of some of these warrants they may look at it differently.”

In the girl’s case, it was also revealed later that the stepfather – who was a supposed threat – lives in Australia, and was never in the country when her father applied for a warrant.

Legal background

A parenting order, under the Care of Children Act, is issued after parents or guardians disagree over children’s care arrangements and apply to the Family Court for an outcome.

The order, granted by a Family Court judge, determines who looks after the children, and if necessary, when one parent or guardian is allowed to see them.

If that order is breached, an application can be made to the Family Court by the aggrieved parent or guardian for a warrant “authorising a constable or a social worker” to take the children and return them to where they should be.

Reasonable force may be used if necessary in the return of the children.

In this case, the mother is given no notice that a section 72 warrant has been issued for breach of a parenting order, and the family is completely caught off-guard when police turn up - making the process all the more traumatic.

However, the uplifts can be traumatic for police too.

The Police Association’s Cahill says uplifts are very stressful for officers, and it "certainly affects them".

“Police are often used pawns in the wider game between the parents. The children are used as pawns as well.

“Social workers should always be there as they are more highly trained to do this. Often the police doing [uplifts] are the younger ones and they are only five or six years older than the children they are removing and that is tough on them.”

The Police Association has concerns about its officers’ long-term mental health, Cahill says.

“Frontline officers are now spending up to 50 percent of their time on issues around family violence and confrontation, the impact of this keeps adding up.”

Skewed interpretation

Henaghan believes New Zealand has lost sight of what the Care of Children Act is supposed to be about.

“The primary consideration of the act is the welfare and best interests of the child. You can’t tell me that it is in the welfare and best interest of children if they are screaming and yelling that they don’t want to go ... how can it be in their best interests?”

He is visibly taken aback when Newsroom shows him video of the 5-year-old being uplifted.

“It doesn’t matter what’s happened, that isn’t in the best interest to remove that child at that moment.

“The child is so terrorised you just cannot do it. I don’t care what’s happened in the past, and there was no risk to that child from the parent,” Henaghan says.

Professor Mark Henaghan says uplifts are traumatic for children. Photo: Still from video

Applications for orders and warrants can be made on notice, or without notice.

Without-notice applications are supposed to be used only in urgent situations, because the responding parent or caregiver is kept completely unaware of its existence, and subsequently unable to dispute the immediate outcome. Additionally, it is at the applicant’s discretion – pending approval from a judge - whether police are used in the child’s removal. It is also not mandatory for a social worker to be present.

Henaghan emphasises the harm caused when children are forcefully removed.

“The trauma for that child being removed against their wishes can be horrific,” he says.

“When the state can come in when there is no harm happening to you, but you are going to be physically picked up and going to be placed where you don’t want to be, I mean, any adult is going to say we are living in a police state.”

Henaghan believes Family Court judges would think twice about issuing the orders if they could see how distressing the uplifts are. Orders are just a piece of paper that once signed, are “out of sight, out of mind”, he says.

“I’m sure some judges - if they saw the reaction of some children, which is very upsetting - may look at it very, very differently.”

Figures from the Ministry of Justice show in the 12 months to June 30 last year, 600 warrants (under sections 72 and 73 of the Care of Children Act) were issued in relation to breaches of parenting orders - an average of more than 11 each week.

A similar number were issued in the previous 12-month period. Before this, the number of warrants was significantly lower – about 400 were issued across the equivalent 12-month periods since 2012.

When Newsroom requested a further breakdown showing how often police were used to enforce warrants, the Ministry of Justice said the figures were not immediately available, as the information was recorded manually on individual case files - rather than in its electronic records.

Another case

In another video obtained by Newsroom, police remove a 14-year-old boy under similar circumstances. The teenager is also crying and begging to be left with his father.

According to the parenting order, the boy’s mother has day-to-day care. He spends weekends, and some school holidays with his father. His 16-year-old sister lives with the pair’s father, and his current wife.

Last July, an application from the children’s father for an overseas holiday at the beginning of the year was approved by a Family Court judge.

However, when the family returned home from the holiday at the end of January, the father was served with an order instructing the boy be returned to his mother, with his passport, at midday on January 29.

“My son was distraught and he refused point blank to go back to his mother,” the father says.

“I would have had to physically drag him kicking and screaming into the car, and honestly, I challenge any parent faced with the same situation to have done otherwise - more so with the worry of him possibly attempting to jump from a moving vehicle.”

According to the father, he drove to meet the boy’s mother, handed over the passport, and explained his son’s refusal to return to her.

“I explained to my son that I would be in breach of the court order by him refusing to be returned to his mother, even though he was in a totally distressed state,” his father says.

“All he could repeat over and over was: ‘They won’t listen to me’.”

The father then applied to the Family Court to change the parenting order, and was turned down.

Meanwhile, the boy requested to speak to his court-appointed lawyer, who sent an email saying he would only speak to him once he was back with his mother, the father says.

At 8pm, two male police officers in uniform turned up. Despite crying uncontrollably and pleading to stay with his father, the teen was taken away at 10.45pm by the officers. He was returned to his mother, who was waiting in a car outside.

A 14-year-old boy is removed from his father's house by police officers on a Family Court order. Photo: Still from supplied video

“It was so traumatic, particularly when he was in no immediate danger,” the father says.

“It’s not like I am an unsuitable parent. My daughter lives with me, I’m a law-abiding citizen with a completely clean police record. I certainly couldn't see there was any wrongdoing by my 14-year-old son simply wishing to have his voice heard in wanting to have a change in the current [parenting] orders.

Waking in the middle of your worst nightmare

The two uplifts caught on video are representative of a much larger problem, according to Deborah Mackenzie, co-founder of Backbone Collective - a group run by, and for, survivors of violence against women.

Since Backbone launched five months ago, Mackenzie has heard stories from “hundreds” of women, many whose children are uplifted by police, despite being in no physical or psychological danger.

“What we’re hearing from women around the country is that the police are being used in situations where the children are in absolutely no imminent danger at all. So it’s a very brutal and cold way of uplifting children.

“It seems unbelievable in the extreme that the Family Court would use such a brutal intervention to enforce a parenting order,” Mackenzie says.

“It’s state-sanctioned abuse. I can’t think of any other way to describe it.”

Backbone fields daily phone calls from mothers who describe interventions that sound like “waking in the middle of your worst nightmare”, she says.

“Every day we hear a story that’s worse than the day before. And these brutal uplifts are one example of barbaric practices that we hear about from women.”

Due to the nature of Backbone and who they deal with, most of the stories Mackenzie hears are from women. But removals are being ordered from both sides.

“People can’t grasp that this would really happen in New Zealand,” she says.

The aftermath

In the case of the 5-year-old girl who features in Newsroom’s video story, her mother has not seen her for 56 days. Her attempts to talk to her on her 6th birthday failed when a phone call was not able to be facilitated between the girl’s lawyer, the CYFS case manager and the father.

In the case of the 14-year-old boy, the father has not seen his son since the February 1 removal. His access to his son was changed from “unsupervised” weekend access to “supervised” access because he breached the parenting order to return the boy to his mother.

The father says while he remains totally devastated, he believes there is no point in engaging further with the Family Court process.

“The situation is impossible, no one listens to my son and as he is 14, he should be listened to,” he says.

“The mindset in the Family Court is set in concrete and the lawyer for the child is clearly not acting in the best interests of the child, in my opinion. The entire process going through the court system has been so debilitating, not just for the children but for myself and our extended family.”

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